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ECU political science professors break down SCOTUS expansion bill

Congressional Democrats propose expanding the Supreme Court by four justices in the Judiciary Act of 2021.
Published: Apr. 15, 2021 at 7:23 PM EDT
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GREENVILLE, N.C. (WITN) - A week after President Joe Biden announced a commission to study the Supreme Court, including the number of Supreme Court justices, Congressional Democrats introduced a bill that would expand that number from 9 to 13.

There have been nine Supreme Court justices since 1869.

The bill, known as the “Judiciary Act of 2021,” was introduced by Sen. Ed Markey (D-Mass.) and Rep. Jerry Nadler (D-N.Y.) in front of the Supreme Court building on Thursday.

“We are here today because the United States Supreme Court is broken,” Markey said at the press conference. “It is out of balance, and it needs to be fixed.”

Nadler said the logic behind nine justices is much weaker today when there are now 13 federal appeals courts, so he argued it’s logical to have 13 justices.

“There’s nothing new about changing the size of the Supreme Court,” Nadler said. The constitution leaves the number of justices up to Congress, and Congress has changed that number seven times in the history of the country.”

Some Democrats aren’t over what happened in 2016 when Obama’s nominee, Merrick Garland, who is now the U.S. Attorney General, was blocked by Senate Republicans and then later, the confirmation of Trump’s nominee, Justice Amy Coney Barrett, a week before the election last year.

“Currently, there’s a six to three conservative majority on the Supreme Court so appointing four new justices would tilt the ideological balance of the Court,” ECU’s Dr. Peter Francia said. “Because four new justices would be chosen by Joe Biden, those justices presumably would be ideologically left of center.”

Sen. Markey said Republicans “stole the Court’s majority, with Justice Amy Coney Barrett’s confirmation” in a press release on Thursday.

“Senate Republicans have politicized the Supreme Court, undermined its legitimacy, and threatened the rights of millions of Americans, especially people of color, women, and our immigrant communities. This legislation will restore the Court’s balance and public standing and begin to repair the damage done to our judiciary and democracy, and we should abolish the filibuster to ensure we can pass it.”

Nadler argued against packing the Court.

“We’re not packing it. We’re unpacking it,” Nadler said.

Francia said the Barrett nomination controversy is that Democrats accused Republicans of a double standard in terms of what Sen. Mitch McConnell (R-Ky.) did and said.

“What we’re watching right now is a reaction to what occurred there over the last, over that four-year period, where Democrats had been denied the Garland nomination, but Republicans were able to get the Barrett confirmation through under identical circumstances,” Francia said.

However, both Francia and Dr. Brad Lockerbie at ECU said expanding the Court would further become politicized.

“I think one downside to it from the Democrats’ perspective is that it will be seen as blatantly political, that they’re trying to increase it by 4 because they want to start winning some of these cases that they’ve lost on a 6-3 margin or 5-4 margin,” Lockerbie said.

If four new justices were added, it’d be “tit-for-tat,” according to Lockerbie.

“You will see the size of the Supreme Court expand ... which I think is something that a lot of Democrats don’t want to have happened because they’ve won a lot of battles at the Court. They like it to be seen as a nonpoliticized institution regardless of whether there are Republican and Democratic justices.”

House Speaker Nancy Pelosi said she has “no plans” to bring the bill to the floor.

Both Lockerbie and Francia said it’s unlikely the bill will pass.

“I would expect that the Democrats who are pushing this well before Pres. Biden’s commission comes back with a report are doing it in part to satisfy the base,” Lockerbie said. “I would assume most of the people behind this bill know, but it’s not likely to pass at this point, but they’re doing it for basically show, for lack of a better expression.”

Francia added Biden expressed reservations about packing the Court in the past. His commission, made up of a bipartisan group of people, is expected to examine topics such as the length and service and turnover of the Court’s justices. They’re directed to complete a report in about six months.

For President Biden to name a member to the Supreme Court, the seat would have to be vacant due to retirement or death in the Supreme Court.

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